APPENDIX I

PREDICATE QUESTIONS
RESEARCHER
in the
Area of Alcohol Impairment

Evidentiary Hearing

Please state your name for the record.

  1. What is your occupation?
  2. By whom are you currently employed?
  3. How long have you been employed in this field?
  4. Please explain the nature of your work.
  5. Do you specialize in studying a particular subject?
  6. What is your educational background?
  7. Are you a medical doctor?
  8. Do you belong to any professional organizations?
  9. Please tell the court what those organizations are.
  10. How does one become a member of those organizations?
  11. As a result of your research, have you written articles or research studies?
  12. Have any of your articles or studies been published?
  13. Please name some of your publications and where the material has been published.
    (Mark and offer into evidence the expertís curriculum vitae (CV). The CV will generally include a list of publications and presentations. If not, have the expert prepare a list of publications and presentations to attach.)
  14. Are these articles peer reviewed before publication?
  15. Please explain what it means to have an article "peer reviewed".
  16. Have you given presentations on the results of your research findings?
  17. Please tell us some of the organizations to which you have given presentations.
  18. How long have you been working in your current position?
  19. What are your responsibilities?
  20. Have you testified in court before on the horizontal gaze nystagmus (HGN) field sobriety test?
  21. Have you been qualified as an expert in court on the HGN test?
  22. How many times?
  23. In what courts or states?
  24. Approximately how many times have you testified on HGN?
    (If you have not already done so, move to have the witness recognized as an expert.)
  25. Are you familiar with the research that has been done regarding field sobriety testing (FST)?
  26. Specifically, are you familiar with the research conducted by the Southern California Research Institute (SCRI) for the National Highway Traffic Safety Administration (NHTSA)?
  27. How many studies on FSTs has SCRI conducted for NHTSA?
  28. Have your read all of those studies?
  29. Are you familiar with the FST known as horizontal gaze nystagmus?
  30. What is horizontal gaze nystagmus?
  31. How did you become familiar with the HGN test?
  32. Were you aware of the use of the HGN test in law enforcement agencies prior to your study of it?
  33. Do you know how HGN came into use as a FST prior to SCRIís research?
  34. You testified previously that SCRI did three studies for NHTSA on field sobriety tests. When was the first study conducted?
  35. What was the purpose of the first study?
    (If you have not previously introduced the 1977 NHTSA study into the record, have it marked and entered into evidence as an exhibit. Otherwise, make note on the record that it has been previously submitted.)
  36. As a result of this study, was a recommendation made regarding a specific battery of tests that should be given by police officers to determine a suspectís level of impairment?
  37. What were the tests recommended by SCRI?
  38. Were these tests later adopted by NHTSA as its standard battery of field sobriety tests?
  39. Please describe the methods used in determining that these three tests were the best at assessing alcohol impairment.
  40. Referring specifically to the HGN test, what were the conclusions about its usefulness as a field sobriety test?
  41. When was the second study for NHTSA done?
    (Follow the same procedure for admission of the 1981 study as recommended after question 36.)
  42. What was the purpose of the second study?
  43. What methodology was used in conducting the second study?
  44. In the 1981 study, were the officers trained in the use of the HGN test before the study?
  45. How were they trained to administer the test?
  46. What was the criteria for assessing the results of the study?
  47. What were the results of the second study?
  48. Could you explain what you mean by a "correct" decision?
  49. What was the BAC level that was used in this study to determine if the officerís arrest decision was correct?
  50. Would a decision to not arrest a suspect who later tested at a .10 BAC or greater be scored as incorrect under the criteria of the study?
  51. Would a decision to arrest someone who was not at a .10 BAC or greater also be incorrect under the criteria of the study?
  52. Based on the two studies conducted for NHTSA, were conclusions drawn about the accuracy of the HGN test?
  53. What are those conclusions?
  54. Was SCRI involved in any other studies for NHTSA regarding the field sobriety tests?
  55. Do you know what the purpose of the 1983 study was?
  56. Have you read the 1983 study?
  57. Are you familiar with the contents of the study?
    (Mark and move for admission the 1983 study as explained above after question 36.)
  58. How was the 1983 study conducted?
  59. What did the study conclude?
  60. Are you familiar with the 1995 Colorado Validation Study?
    (Mark and move for admission the 1995 Colorado Validation Study as described previously.)
  61. What did that study conclude?
  62. How is the HGN test administered?
  63. Is the procedure for administering the test currently used by police officers the same as the procedure that was tested?
  64. What are the specific clues the officer is looking for in administering the HGN test?
  65. Please explain what you mean by a "lack of smooth pursuit".
  66. What is "maximum deviation"?
  67. What is meant by the "angle of onset"?
  68. How does an officer determine the angle of onset?
  69. Have you been involved with any training programs for officers in administering the HGN test?
  70. What has been your involvement?
  71. How long does it take to train a police officer to administer and accurately interpret the HGN test results?
  72. Are you familiar with the training procedure recommended by NHTSA?
  73. Have you seen officers administer the HGN test in the field under actual working conditions?
  74. Do you have an opinion about the ability of a police officer to administer the HGN test?
  75. What is that opinion?
  76. Do you have an opinion about an officerís ability to interpret the HGN test?
  77. What is that opinion?
  78. Does an officer need to understand the process by which alcohol ingestion creates nystagmus in order to properly administer and interpret the test?
  79. Why not?
  80. Are people able to voluntarily control nystagmus?
  81. Does a person know that he has alcohol induced nystagmus?
  82. Does a personís vision, such as nearsightedness, affect the ability to do the test?
  83. Does the fact that the suspect may be wearing contact lenses affect the accuracy of the test results?
  84. For purposes of clarification, we have been speaking about horizontal gaze nystagmus. Are there other types of nystagmus?
  85. How did you become aware of the other types of nystagmus?
  86. Could you explain what other types of nystagmus there are?
  87. How does alcohol induced nystagmus appear to the observer?
  88. What is the relationship of alcohol ingestion to horizontal gaze nystagmus?
  89. You have testified previously about other forms of nystagmus. Does nystagmus occur naturally in some people?
  90. Would a person with a natural nystagmus exhibit all six clues that the officer is looking for?
  91. Have your reviewed the NHTSA manuals regarding the standardized field sobriety tests?
  92. Are there conditions under which the HGN test should not be administered?
  93. Can the test be given to a suspect who is sitting down?
  94. Can it be given to a suspect who is laying down such as an individual who has been in a traffic crash?
  95. Do you keep current on the literature involving the use of HGN as a field sobriety test?
  96. Are there any studies which refute your findings as reported in the NHTSA studies of 1977? 1981? 1983?
  97. Are you aware of any scientific publications which refute the findings?
  98. Are there any scientific publications which dispute the connection between alcohol consumption and horizontal gaze nystagmus?
  99. Do you have an opinion as to what fields of study or professions would be interested in the use of the HGN test as a measure of alcohol impairment?
  100. Are there other drugs in addition to alcohol which cause HGN?
  101. Are these also impairing drugs?

Trial

  1. Please state your name for the record.
  2. What is your occupation?
  3. How long have you been employed in this field?
  4. Where are you currently employed?
  5. Please explain the nature of your work.
  6. What is your educational background?
  7. Do you belong to any professional organizations?
  8. Please tell us what they are.
  9. Have you authored any publications, specifically dealing with the effects of alcohol on the human body?
  10. Have you authored any publications on field sobriety testing?
  11. What are field sobriety tests?
  12. What is their purpose?
  13. Have your publications on FSTs been published in "peer reviewed" journals?
  14. Can you describe for the jury what it means to have an article published in a "peer reviewed" journal?
  15. Have you been asked to give presentations to any professional organizations on the effects of alcohol?
  16. Please tell us when and to whom these presentations were given.
  17. Have you given presentations on field sobriety testing?
  18. Please tell us when and to whom these presentations were given.
  19. How long have you been working in your current position?
  20. Are you familiar with the research conducted for the National Highway Traffic Safety Administration (NHTSA) regarding field sobriety testing?
  21. Who did NHTSA fund to conduct the FST research?
  22. What was the purpose of these studies?
  23. How many field sobriety test studies were conducted for NHTSA?
  24. Please tell us when these studies were conducted.
  25. I want to direct your attention to the field sobriety test known as the horizontal gaze nystagmus or HGN test. Are you familiar with this test?
  26. How did you become familiar with the HGN test?
  27. What is horizontal gaze nystagmus?
  28. Was the HGN test being used by law enforcement agencies to determine that a suspect might be under the influence of alcohol before the 1977 NHTSA study was conducted?
  29. Do you know how long the test had been in use by law enforcement prior to 1977?
  30. How did the HGN test get selected as one of the tests to be studied?
  31. What, if any, other studies were conducted by SCRI for NHTSA regarding FSTs.
  32. Was the HGN test also researched as part of a 1981 research study?
  33. What type of research was done for the 1981 study?
  34. What type of research was done for the 1983 study?
    (It is unnecessary to have the expert go into a long explanation about the NHTSA studies. Let the defense attorney bore the jury with all the details. What is important is that the expert has extensively studied HGN, is familiar with the connection between alcohol and HGN, the HGN test is a reliable indicator of alcohol consumption, and that police officers are qualified to administer and interpret the test.)
  35. Do you know what the National Highway Traffic Safety Administration did with the results of the 1977, 1981, and 1983 studies?
  36. Have you been involved in any training programs for officers in the administration and interpretation of HGN test results?
  37. Is the HGN test as currently given by the police, the same as the test that was studied by SCRI for NHTSA?
    (If you have not already done so, move the court to qualify the witness as an expert. In most jurisdictions, an expert may rely on hearsay evidence in forming an opinion. The expert may also give an opinion about the ultimate issue.)
  38. Did any of this training involve observing the officers administering the HGN test out on the roadside under the officerís actual working conditions?
  39. How long does it take to train someone to administer and interpret the test?
  40. How is the test administered?
  41. What specifically are the officers looking for?
  42. Please describe what is meant by "maximum deviation".
  43. What is meant by a "lack of smooth pursuit"?
  44. What is the purpose for determining an angle of onset?
  45. How is the angle determined?
  46. Can the angle be accurately determined without a measuring device?
  47. Does an officer need to know why drinking alcohol causes nystagmus in order to properly administer the test and interpret the results?
  48. Why not?
  49. Can a person voluntarily control nystagmus?
  50. In your experience, is nystagmus visible in persons who have not been drinking alcohol?
  51. Do other drugs cause nystagmus?
  52. Are these drugs impairing?
  53. Do contact lenses have an effect on the HGN test results?
  54. Does poor vision have an effect on the HGN test results?
  55. Are there other causes of nystagmus?
  56. Do some people have nystagmus naturally?
  57. Is a natural nystagmus the same as horizontal gaze nystagmus?
  58. Would a person with a natural nystagmus exhibit the six clues that the officer is looking for?
  59. Do you keep current on the literature involving field sobriety testing?
  60. Do you keep current on the literature involving the HGN test specifically?
  61. Are you aware of any scientific publications that dispute the validity of the HGN test as a measure of alcohol impairment?
  62. Do you have an opinion as to the ability of a properly trained police officer to administer and interpret the HGN test?
  63. What is that opinion?
  64. Do you have an opinion as to the validity of HGN test as a measure of an individualís impairment by alcohol?
  65. What is that opinion?
  66. Upon what do you base your opinions